Four major surveillance thinkers argue the merits of our post-Snowden world in Toronto.

TORONTO—Friday night, luminaries from both sides of the "broad state surveillance" argument took the stage together for a public debate, the latest in Canada’s Munk Debate series, on the subject. In the end, surveillance critics won the spread between pre- and post-debate audience polls to triumph, but in between were two hours of impassioned invective from some of the world’s preeminent experts and advocates on a public issue still far from settled.

The resolution, in typical Munk style, was direct though not without ambiguity: “Be it resolved, state surveillance is a legitimate defense of our freedoms.” As you’ll read below, the interpretation of the resolution was the source of a great deal of controversy.

Friday’s debate featured two teams of two debaters. Arguing for the resolution were Michael Hayden, former head of the NSA and CIA, and US director of National Intelligence, along with Alan Dershowitz, Harvard Law professor and criminal defense attorney. Arguing against the resolution were Glenn Greenwald, the journalist and civil libertarian whose coverage in The Guardian opened the Snowden saga, and Alexis Ohanian, co-founder of reddit and Internet freedom advocate. Adding to the fun, Edward Snowden himself appeared by video for a brief statement.

The Munk page on the debate will soon feature the debate transcript for free, along with video of this and past debates for paid members. Also free and currently available are a few two-page abstracts submitted in advance by each of the four debaters. These outline their primary arguments and approaches to the debate. (Greenwald, Hayden, Ohanian, Dershowitz)

With the stage set, let’s take a brief tour through the major points of tension between the debaters, before finishing with excerpts from our exclusive post-debate interviews.

The meaning of “is,” and other interpretation issues

The text of the resolution was the matter of some acrimony among the debaters. Initially, it seemed that the stated resolution was somewhat favorable to privacy advocates. Rather than asking if surveillance enhanced "public safety," or asking about an appropriate balance between liberty and safety, the resolution put “freedom” front and center.

But both Hayden and Dershowitz seized on the word “defense” to talk up public safety in their opening presentations, arguing that such safety is a prerequisite for the exercise of any freedom. Therefore, surveillance is a legitimate act of defense. Greenwald and Ohanian, by contrast, argued that the surveillance state as it exists isn’t necessary or effective in protecting the public from terrorism and that its extent goes far beyond what would be useful for this purpose.

Another significant point of contention about the debate resolution centered on the meaning of “state surveillance,” or, in historic terms, the meaning of “is.” Dershowitz centered his defense of the resolution on the notion that surveillance of some kind, of someone, is universal among states. The only questions are who is surveilled, by what means, and how these things are decided. In Dershowitz’s picture, even if the state is currently surveilling too much or too broadly, these are questions about adjusting a legal system that is ultimately well-intentioned and, like all human institutions, a work in progress. But the underlying principle of state surveillance, he argued, is accepted by nearly everyone.

Greenwald disagreed strenuously, claiming that the resolution, phrased in the present tense, referred to the system of state surveillance which currently exists. He called his critics' claim a straw man argument, saying that he never encountered a single person who maintains that the government can never surveil anyone, ever. Today's concerns were about the modern approach to massive, non-targeted surveillance of entire populations.

When Dershowitz, in his closing remarks, conceded that the extent of the current surveillance system was too great and needed to be reined in, Ohanian seized the moment. He congratulated Dershowitz on switching sides, giving the audience a quick laugh.

Ohanian’s role as “the nerd in the room”

Ohanian’s opening remarks centered on the economic and security impact mass surveillance has on Internet infrastructure and the IT industry. Pointing out that the insecurity (real or perceived) of hosting data on American servers was already spurring a migration away from US-based Web services, Ohanian cited an estimated $180 billion in economic damage caused to cloud computing and storage providers in the US by the growing migration. He also pointed out that Web insecurity induced by the NSA stands, under other circumstances, to be exploited by other actors, endangering the security of the Internet even if governments do nothing wrong. Mass surveillance isn’t useful nor exclusively used for fighting terrorism, and it’s damaging both the economic and the information security of Americans on the Internet. Thus, he concluded, it’s essential for the future of the internet that it be done away with.

As the debate wore on, Ohanian seemed content, as an ambassador from the Internet (or, as he put it, “the nerd in the room”), to periodically reiterate and reinforce this same basic point. This left the moderator content to direct more questions and rebuttal opportunities to Greenwald. It was to the debate’s benefit, as the room filled with sparks from Greenwald’s repeated collisions with Hayden and Dershowitz.

“Don’t wait for the translation; answer me now!”

In his pre-debate précis, Greenwald referred to the matter of terrorism as a “pretext” for the mass surveillance currently underway by major Western governments, writing:

"Terrorism" is the pretext, not the cause or justification, of this sprawling system. Indeed, over the past 12 years, the US has left no doubt that it yells "the terrorists" as a means of scaring populations into submitting to whatever it wants to do, no matter how radical and destructive.

After citing evidence from court cases and Civil Liberties Boards that the surveillance programs aren’t effective at preventing terrorism and have been used against foreign companies and allied governments, he continues:

The Snowden documents have revealed the actual target of this system: entire populations of innocent, law-abiding people who have done nothing wrong, and who should not have their private communications and other acts collected and stored by distant governments operating in secret. They even include the spying government's own citizens, en masse, who now know that the vast bulk of this system is devoted to sweeping up and storing massive amounts of their own private activities.

Dershowitz hit this point hard, alleging in his opening remarks that by making “pretext” one of the centerpieces of his précis, Greenwald was alleging that the actual intent of the surveillance system was nefarious. Accusing Greenwald of harboring conspiracy theories about governments’ purpose in surveilling their citizens, he challenged Greenwald to articulate the secret purpose implied by his remarks about “pretext.”

In his rebuttal, Greenwald, on his back foot for perhaps the only time in the debate, de-emphasized the purpose argument without disavowing his “pretext” characterization. He argued that while we may not know what the purpose is in a true sense, it’s clear from the record that terrorism cannot be the primary purpose since the programs are not effective against terrorism. He argued further that purpose is unimportant if the programs themselves are harmful and subject to abuse both by individuals within the intelligence services and by any future governments whose purposes may not be as pure.

Dershowitz didn’t let go. During the moderator questioning, he hounded Greenwald with repeated accusations that “there’s no pretext without a hidden purpose!” Greenwald, clearly incensed, retorted. “You can keep saying that, but it doesn’t change the record.” Citing again his evidence that the programs aren’t effective in combating terrorism, Greenwald still didn’t satisfy Dershowitz. The tension between the two persisted after the debate.

“Facts matter,” but whose facts are in evidence?

In his opening remarks, Hayden asserted that “facts matter.” The key point, he avowed, is the nature of the surveillance programs which exist today. He believed these were limited in extent, bound by legal process, and narrowly focused on defense from terrorism. The emphasis on the present system put the General at odds with his partner, Dershowitz, on the interpretation question as to whether the matter is surveillance in its present state or as a matter of abstract principle.

Greenwald’s opening presentation, his rebuttal, his question answers, and his closing remarks all focused heavily on factual citations and quotations from experts, ranging from court decisions, to Senators, to internal NSA documents released in the Snowden leaks, to the White House’s Civil Liberties Board. It all supported Greenwald’s core contentions: that the surveillance state involves the routine collection of private information on millions of people including Americans, that it’s not necessary to fight terrorism, and that the NSA has been dishonest about the nature and extent of its surveillance programs.

Dershowitz, though debating on the pro-surveillance side of the stage, was also ready to allow that mass surveillance of Americans was taking place in some capacity. In his closing remarks, he explicitly said that allowing some level of surveillance intrusion without a traditional due process was not only part of the present system, but it's something he would allow and support in the abstract.

But not Michael Hayden. One of the most explosive facts in the firestorm over the Snowden revelations was James Clapper’s “no sir” response to a question from Ron Wyden (D-OR), when asked whether the NSA collects information on millions of Americans in light of the Snowden leaks. For his part, Hayden seemed pleased to repeat Clapper’s most famous sound bite. Repeatedly he avowed that Greenwald’s assertions were wrong and that, in fact, nothing untoward was taking place. There was no mass collection or surveillance. Targeted surveillance operated under strict legal controls. On every point, the two men’s view of the facts stood in sharp contrast to each other.

There was only one bit of mass surveillance Hayden would admit the NSA was conducting: mass collection of telephone call metadata on foreigners. He insisted this was inside a “lock box,” with only 22 people authorized to view data, only a simple “who called this number” query permitted, and only 280 queries in 2012.

The General characterized press reporting on the Snowden leaks and other mass surveillance reporting as akin to the perspective of a person granted only a few glimpses of a whodunit film’s third act, merely attempting to guess who committed the murder. The metaphor seemed geared to de-escalate the factual clash into one of interpretation, but there were so many clashes on basic facts that it seemed impossible to resolve the inconsistency except by concluding dishonesty by some party.

It was an interesting experience, sitting in a debate wherein the most fundamental factual grounds for the debate are in bald and total dispute between parties. There was a curious tension in the air among the audience each time Greenwald or Hayden rose; what was going to be said next? How could two men standing in the same room, both experts in this field, so confidently, so consistently bring opposite factual claims? Were we in the presence of an unscrupulous fabulist who shouted glib misinterpretations into the headlines in an effort to enrich his journalism career? Or perhaps a cynical career intelligence executive smugly playing the world public for fools by lying through his teeth? Or was there some kind of incredible chain of honest misunderstandings underlying this clash of narratives?

This was the prevailing thought as the debate closed. As the lights came up, the hall cutely emptied to the tune of Michael Jackson singing “Somebody’s Watching Me.” Ars had the opportunity to try to find a little more clarity afterward, speaking with each of the four men at the debate. The following transcripts, slightly condensed and omitting greetings, interruptions, and pleasantries, were our conversations.